Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has broad connotations, product liability as an area of law is traditionally limited to products in the form of tangible personal property.[1]

Product liability in the United States

Theories of liability

In the United States, the claims most commonly associated with product liability are negligence, strict liability, breach of warranty, and various consumer protection claims. The majority of product liability laws are determined at the state level and vary widely from state to state.[2] Each type of product liability claim requires different elements to be proven to present a successful claim.

Types of liability

Section 2 of the Restatement (Third) of Torts: Products Liability distinguishes between three major types of product liability claims:

manufacturing defect,

design defect,

a failure to warn (also known as marketing defects).

However, in most states, these are not legal claims in and of themselves, but are pleaded in terms of the theories mentioned above. For example, a plaintiff might plead negligent failure to warn or strict liability for defective design.[3]

Manufacturing defects are those that occur in the manufacturing process and usually involve poor-quality materials or shoddy workmanship.

Design defects occur where the product design is inherently dangerous or useless (and hence defective) no matter how carefully manufactured; this may be demonstrated either by showing that the product fails to satisfy ordinary consumer expectations as to what constitutes a safe product, or that the risks of the product outweigh its benefits.[4]

Failure-to-warn defects arise in products that carry inherent nonobvious dangers which could be mitigated through adequate warnings to the user, and these dangers are present regardless of how well the product is manufactured and designed for its intended purpose.

Breach of warranty

Warranties are statements by a manufacturer or seller concerning a product during a commercial transaction. Warranty claims commonly require privity between the injured party and the manufacturer or seller; in plain English, this means they must be dealing with each other directly. Breach of warranty-based product liability claims usually focus on one of three types: (1) breach of an express warranty, (2) breach of an implied warranty of merchantability, and (3) breach of an implied warranty of fitness for a particular purpose. Additionally, claims involving real estate may also take the form of an implied warranty of habitability. Express warranty claims focus on express statements by the manufacturer or the seller concerning the product (e.g., "This chainsaw is useful to cut turkeys"). The various implied warranties cover those expectations common to all products (e.g., that a tool is not unreasonably dangerous when used for its proper purpose), unless specifically disclaimed by the manufacturer or the seller.

Strict liability

Rather than focus on the behavior of the manufacturer (as in negligence), strict liability claims focus on the product itself. Under strict liability, the manufacturer is liable if the product is defective, even if the manufacturer was not negligent in making that product defective.

The difficulty with negligence is that it still requires the plaintiff to prove that the defendant's conduct fell below the relevant standard of care. However, if an entire industry tacitly settles on a somewhat careless standard of conduct (that is, as analyzed from the perspective of a layperson), then the plaintiff may not be able to recover even though he or she is severely injured, because although the defendant's conduct caused his or her injuries, such conduct was not negligent in the legal sense (if everyone within the trade would inevitably testify that the defendant's conduct conformed to that of a reasonable tradeperson in such circumstances). As a practical matter, with the increasing complexity of products, injuries, and medical care (which made many formerly fatal injuries survivable), it is quite a difficult and expensive task to find and retain good expert witnesses who can establish the standard of care, breach, and causation.

Therefore, in the 1940s and 1950s, many American courts departed from the MacPherson standard and decided that it was too harsh to require seriously injured consumer plaintiffs to prove negligence claims against manufacturers or retailers. To avoid having to deny such plaintiffs any relief, these courts began to look for facts in their cases which they could characterize as an express or implied warranty from the manufacturer to the consumer. The res ipsa loquitur doctrine was also stretched to reduce the plaintiff's burden of proof. Over time, the resulting legal fictions became increasingly strained.

Of the various U.S. states, California was the first to throw away the fiction of a warranty and to boldly assert the doctrine of strict liability in tort for defective products, in 1963 (under the guidance of then-Associate Justice Roger J. Traynor). See Greenman v. Yuba Power Products, 59 Cal. 2d 57 (1963). The importance of Greenman cannot be overstated: in 1996, the Association of Trial Lawyers of America (now known as the American Association of Justice) celebrated its 50th anniversary by polling lawyers and law professors on the top ten developments in tort law during the past half-century, and Greenman topped the list.[5]

In Greenman, Traynor cited to his own earlier concurrence in Escola v. Coca-Cola Bottling Co., 24 Cal. 2d 453, 462 (1944) (Traynor, J., concurring). In Escola, now widely recognized as a landmark case in American law,[6] Justice Traynor laid the foundation for Greenman with these words:

Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.

The year after Greenman, the Supreme Court of California proceeded to extend strict liability to all parties involved in the manufacturing, distribution, and sale of defective products (including retailers)[7] and in 1969 made it clear that such defendants were liable not only to direct customers and users, but also to any innocent bystanders randomly injured by defective products.[8]

Since then, many jurisdictions have been swayed by Justice Traynor's arguments on behalf of the strict liability rule in Escola, Greenman, and subsequent cases. In the 40 years after Greenman, the highest courts of nearly all U.S. states and territories followed California's example in imposing strict liability on manufacturers, distributors, and retailers for defective products. In a landmark 1986 decision, the U.S. Supreme Court embraced strict liability for defective products by adopting it as part of federal admiralty law.[9]

Meanwhile, although the Greenman rule was transmitted to most other states via Section 402A of the Restatement of Torts, Second (published in 1964 after Greenman), the Supreme Court of California refused to adopt Section 402A's "unreasonably dangerous" limitation upon strict liability in 1972.[10] Thus, strict liability in California is truly strict, in that the plaintiff need not show that the defect was unreasonable or dangerous. On the other hand, in California, the defendant is allowed to introduce evidence in a strict products liability action that the plaintiff contributed to his or her own injuries.[11]

Although the Supreme Court of California has since become more conservative, it continues to endorse and expand the doctrine. In 2002 it held that strict liability for defective products even applies to makers of component products that are installed into and sold as part of real property.[12] However, strict liability is not limitless. In 2012, the Court held that manufacturers are liable under strict liability and negligence only for defects in their products, as distinguished from other products that could potentially be used with their products.[13]

Consumer protection

In addition to the above common law claims, many states have enacted consumer protection statutes providing for specific remedies for a variety of product defects. Statutory remedies are often provided for defects which merely render the product unusable (and hence cause economic injury) but do not cause physical injury or damage to other property; the "economic loss rule" means that strict liability is generally unavailable for products that damage only themselves. The best known examples of consumer protection laws for product defects are lemon laws, which became widespread because automobiles are often an American citizen's second-largest investment after buying a home.

Product liability outside of the United States

In the rest of the world, legislatures took the lead in imposing strict liability for defective products. The judiciaries of several countries rejected attempts by creative lawyers to persuade them to adopt the Greenman holding, including Canada and South Africa.

In Europe, a movement towards strict liability began with the Council of EuropeConvention on Products Liability in regard to Personal Injury and Death (the Strasbourg Convention) in 1977.[14] On July 25, 1985, the European Economic Community adopted the Product Liability Directive. In language similar to Traynor's, the Directive stated that "liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production." However, the Directive also gave each member state the option of imposing a liability cap of 70 million euros per defect. The Directive only imposed strict liability upon manufacturers or importers, and deviated significantly from the U.S. model by refusing to impose strict liability on purely domestic distributors or retailers.

China first enacted a Product Quality Law in October 1993 in an attempt to impose strict liability, but the law was badly drafted and was quite weak. After numerous product scandals throughout the 2000s, China finally enacted a much stronger Tort Liability Act in December 2009, followed by a Statute on the Choice of Substantive Law in Foreign-Related Civil Relationships in April 2011, which enables Chinese consumers injured by foreign-made products to request that Chinese courts apply the law of the defendant's place of business. While these two laws are still relatively ineffective against large Chinese manufacturers who are state-owned enterprises (as the defendant can simply have the product defect declared a state secret and then have the plaintiff prosecuted for revealing state secrets), they will enable Chinese consumers to seek some compensation from non-state companies as well as foreign manufacturers.

Rationale for and debate over strict liability

Strict products liability causes manufacturers to internalize costs they would normally externalize. Strict liability thus requires manufacturers to evaluate the full costs of their products. In this way, strict liability provides a mechanism for ensuring that a product's absolute good outweighs its absolute harm.

Between two parties who are not negligent (manufacturer and consumer), one will necessarily shoulder the costs of product defects. Proponents say it is preferable to place the economic costs on the manufacturer because it can better absorb them and pass them on to other consumers. The manufacturer thus becomes a de facto insurer against its defective products, with premiums built into the product's price.

Strict liability also seeks to diminish the impact of information asymmetry between manufacturers and consumers. Manufacturers have better knowledge of their own products' dangers than do consumers. Therefore, manufacturers properly bear the burden of finding, correcting, and warning consumers of those dangers.

Strict liability reduces litigation costs, because a plaintiff need only prove causation, not imprudence. Where causation is easy to establish, parties to a strict liability suit will most likely settle, because only damages are in dispute.

Critics charge that strict liability creates risk of moral hazard. They claim that strict liability causes consumers to under invest in care even when they are the least-cost avoiders. This, they say, results in a lower aggregate level of care than under a negligence standard. Proponents counter that people have enough natural incentive to avoid inflicting serious harm on themselves to mitigate this concern.

Critics charge that the requiring manufacturers to internalize costs they would otherwise externalize increases the price of goods. Critics claim that in elastic, price-sensitive markets, price increases cause some consumers to seek substitutes for that product. As a result, they say, manufacturers may not produce the socially optimal level of goods. Proponents respond that these consumer opt outs reflect a product whose absolute harm outweighs its absolute value; products that do more harm than good ought not be produced.

↑See, e.g., Lawrence M. Friedman, American Law in the 20th Century (New Haven: Yale University Press, 2004), 356-357, and Jay M. Feinman, Law 101: Everything You Need to Know About the American Legal System, rev. ed. (New York: Oxford University Press, 2006), 165-168.